An example of where a Criminal Court Judge may not take judicial notice of the evaporation

Published On: Jun 17,2017

June 17, 2017:  An example of where a Criminal Court Judge may not take judicial notice of the evaporation and a Judge can take judicial notice of the evaporation rate of alcohol in person, in the context of the impaired driving or DUI case.

The manner in which a Judge in the Criminal Courts take judicial notice of the evaporation rates of alcohol in a person’s body was considered recently by the Ontario Court of Appeal in Regina v. Kraus, 2017 ONCA 458.  In that case, the accused was alleged to have driven her vehicle across three (3) lanes of oncoming traffic before striking another vehicle, and crashing her car into the median in the road.  One issue before the Criminal Court at trial was whether open bottles of alcohol had been left in the accused’s car for a number of days, thereby leaving the inference open as to whether the accused had consumed the same.

The Ontario Court of Appeal found that while the trial judge had erred by taking judicial notice of the evaporation rate of alcohol, there was overwhelming evidence from other sources that the accused had been impaired by alcohol. 

For instance:

  • (a) she accused had admitted she drank three (3) coolers that day;
  • (b) that her driving was extreme;
  • (c) there were numerous open bottles and “consumed alcohol” in the vehicle; and
  • (d) a cab driver, the arresting officer, and the breath technician smelled alcohol and noted slurred speech.
In applying s. 686 of the Criminal Code of Canada, the Ontario Court of Appeal found that the verdict would have been the same without the error.

This case demonstrates, in our opinion, how a judge may render an error at trial in taking facts into consideration, while having no effect on the outcome at the Court of Appeal when there is other evidence that amply supports a conviction.   Our office assumes conduct of various appeals but prior to doing so, we only engage in such appellate matters when there is a reasonable likelihood  of success to ensure that your resources are not put to waste.  To arrive at that conclusion, we offer an opinion at a reasonable fee before actually proceeding with the merits of an appeal.  To book a consultation via telephone, contact the Law Offices of J. S. Patel, Barrister at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto).